Punjab-Haryana High Court
B.S. Malik vs National Institute Of Technical ... on 2 August, 2024
MOHIT 2024.08.13 17:40 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 216 CWP-6492-2017 Date of Decision: 02.08.2024 B.S. MALIK ...Petitioner Versus NATIONAL INSTITUTE OF TECHNICAL TEACHERS /TRAINING & RESEARCH SEC 26 CHD AND ANOTHER ...Respondents CORAM: HON'BLE MR. JUSTICE ALOK JAIN Present: K.L. Singla, Advocate for the petitioner. Mr. I.S. Sidhu, Advocate for respondent No.1. Mr. Himanshu Malik, Sr. Panel Counsel for respondent-UOI. 3h ie 2K 3k 2 ALOK JAIN, J. (Oral)
1. The present petition has been filed for quashing of the minutes/order dated 31.01.2013/01.02.2013 (Annexure P-8) and letter dated 19.01.2017 (Annexure P-14), whereby the claim of the petitioner for grant of financial up-gradation admissible to him from 01.09.2008 under the Modified Assured Career Progression Scheme (MACPS) has been declined.
2. Learned counsel for the petitioner has submitted that the petitioner was working at the post of Electronics Engineer in the year 1995. Subsequently, the Government of India propounded MACP Scheme, wherein the employees were granted certain financial benefits on completion of 10 years, 20 years and 30 years in service without getting any promotion. In 1995, the petitioner had already completed 10 years and he was granted the first ACP benefit as per the scheme. Subsequently, the petitioner was entitled to the second financial up-gradation in the year 2005 on completion of 20 years in service. However, by virtue of another scheme which was propounded in the year 1996, the time span had been converted from 10 and | attest to the accuracy and integrity of this document CWP-6492-2017 -2- 2004 BHHO OUT 20 years to 12 and 24 years. Subsequently, the petitioner retired on 31.01.2010 on superannuation without being promoted to a higher post.
3. Learned counsel for the petitioner has argued that, in fact, the respondent-institute has been adhering to all the rules, regulations and the circulars issued by the Government of India and have granted benefits to their employees based on the notifications of the Government of India from time to time. He further submits that the Government of India brought the MACP Scheme into force on 19.05.2009 wherein it was made retrospectively operational from 01.09.2008. When the scheme came into force, the petitioner being in service, was entitled to the second financial up- gradation as per the rules. However, the respondents without any reasonable basis, rejected the claim of the petitioner by passing the impugned order (Annexure P-8) by recording the following :-
"(3) Case of Mr. BS Malik: In the case of Shri BS Malik, although, the reporting officer has proposed to enhance the ACR/APAR Grade from good to very good, but his case could not be considered in view of the provisions contained in the Government of India clarification to OM No.21011/1/2010-Estt.A, dated the 13th April, 2010, as Mr. BS Malik superannuated on 31.01.2010. The extract of the clarification to OM dated 13.4.2010 states as under:
"since the provisions of the above OM dated 13.4.2010 are applicable only for future DPCS where the recommendations will be implemented prospectively from the date of assuming charge of the higher appointment, the provisions will not be applicable to retired officers."
He further submits the entire basis for rejection of the claim of the petitioner is Annexure R-6, which is the office memorandum issued on 13.04.2010. Learned Counsel for the petitioner has contended that the office memorandum dated 13.04.2010 would not be a hurdle for the grant of benefit under the MACP scheme to the petitioner as the same was MOHIT . . . . .
2024.08.131740 prospective in nature as it was only with regard to the future promotions, for | attest to the accuracy and integrity of this document MOHIT 2024.08.13 17:40 CWP-6492-2017 -3- 2024 PHHO Ogg 1a & which, the ACRs of the employees were to be considered. He further submits that the scheme however, had to be brought into operation retrospectively and the authorities by not allowing the benefit to the petitioner under the scheme have violated the rules of the scheme as notified by Government of India. Moreso, his ACR was also upgraded from good to very good and therefore, the benchmark as required under the scheme for the grant of entitlement was also met. He relies upon the judgment by the Hon'ble Supreme Court of India in the case of "Union of India vs. M.V. Mohanan Nair"2020(5) SCC 421 to substantiate his arguments wherein it has been held in Para 9 which reads as under:-
"9. In order to bring systematic changes in the existing scheme of ACP so that all employees irrespective of existing hierarchical structure in their organisations/cadre get the same benefit MACP was recommended by the Sixth Central Pay Commission which was accepted by the Government with certain modifications vide its Office Memorandum dated 19.05.2009. Under the Sixth Central Pay Commission, revised pay structure has been implemented with effect from 01.01.2006; whereas benefits of ACP Scheme have been allowed till 31.08.2008. Vide Office Memorandum dated 19.05.2009, the Government of India introduced the MACP Scheme, in supersession of the ACP Scheme w.ef. 01.09.2008. There shall be no change in distinction, classification or higher status on grant of financial upgradation under MACP as the upgradation is purely personal and merely placement in the next higher Grade Pay."
Learned counsel for the petitioner has stressed upon the fact that the Apex Court has held that an ACP scheme which is superseded by a MACP scheme is a matter of Government policy and its application whether retrospective or prospective must be according to date mentioned in the scheme itself and there is no scope of subjective satisfaction of any authority which is bound to implement the same in letter and spirit.
| attest to the accuracy and integrity of this document MOHIT 2024.08.13 17:40 CWP-6492-2017 -4- 2024 BHHC OU
4. Learned counsel for the respondent No.2 has vehemently opposed the grant of any concession to the petitioner on the ground that the scheme which came into force on 19.05.2009, was adopted by the respondent-institute only on 12.10.2010 and since at that time the petitioner had retired from the service, he was not entitled to benefits of the scheme. He has reiterated that as the petitioner retired on 31.01.2010 therefore, the authorities rightfully rejected his claim. He further submits that the office memorandum (Annexure R-6) issued on 13.04.2010 which was also after his retirement, recorded in clear terms that the scheme shall not be applicable to the employees who have already retired. The petitioner never applied for ACP benefits, which were in force as on the date of his retirement, hence, the present petition deserves to be dismissed.
5. I have heard learned counsel for the parties at length and have gone through the paper-book. At the outset, it is pertinent to contemplate the object of MACP scheme brought in by the Central Government for the employees holding a 'civil' post. The object of the scheme is mentioned in the scheme notification itself, wherein it has been stated the 6"Central Pay Commission recommended the MACP scheme for the placement of certain employees in the higher grade pay scale if they have completed certain amount of time in service without being granted promotion to a higher post. The intention of the scheme was to reasonably compensate employees who do not have any avenue of promotion despite their long tenure of service in the Government. The scheme which was notified on 19.05.2009 itself records that it would be applicable/operational with effect from 01.09.2008.The letter dated 12.10.2010 clearly records that the authorities adopted the said scheme 'in-toto'. Once the scheme was adopted in totality, the authorities cannot be allowed to deny that aspect of the scheme which makes it operational from 01.09.2008. The authorities cannot blow hot and | attest to the accuracy and integrity of this document MOHIT 2024.08.13 17:40 CWP-6492-2017 -5- 2024 BHHO. OBEN cold at the same time i.e adopt the scheme in totality but deny its application from the date so notified. Moreso, a perusal of the impugned order also demonstrates that another employee was granted the benefit under the scheme with effect from 01.09.2008, however, learned counsel for the petitioner fairly submitted that the said employee was granted the benefit as he was in service on the date the scheme was adopted by the respondent- institute. The scheme itself had no provision that it would not be applicable for an employee who has retired after the scheme is adopted by the concemed authority as it would grant discretion to an authority to shift the cut-off date from 01.09.2008 to a later date.
6. In light of the above, the present petition is allowed and the authorities are directed to grant the benefit of MACP Scheme to the petitioner with effect from 01.09.2008 and revise his last drawn pay and consequently his pension and grant him all the consequential benefits which he is entitled to. Learned counsel for the petitioner has argued that, in case, the needful is not done within 03 months from today, the petitioner will be entitled to a simple interest on the consequential benefits @ 6% per annum from 01.09.2008 till the date his benefits are released.
7. Ordered accordingly.
(ALOK JAIN) August 02, 2024 JUDGE Mohit Bishnoi Whether speaking/reasoned Yes/No Whether reportable Yes/No | attest to the accuracy and integrity of this document